Bliss v. Woolley

The opinion of the court was delivered by Garrison, J. This is .an appeal from a judgment pro- nounced by the Circuit Court of Monmouth county in a contested election case arising under section 162 el seq. of “An act to regulate elections” [Revision]. Pamph. L. 1898, p. 237. ' The election, which was held upon December 10th, 1901, was for the local officers of Long Branch, a municipality governed under the provisions of “An act to establish the Long Branch police, sanitary and improvement commission,” approved April 11th, 1867. Two tickets were in the field, known respectively as the People’s ticket and the Independent ticket. The incumbent (here the respondent) was running for collector on the People’s ticket. The contestant ran for the same office on the Independent ticket. By the official return of the board of canvassers, the incumbent received one thousand and two votes and the contestant one hundred and ninety-two. Upon the recount before the Circuit Court the vote for the incumbent was unchanged, while that for the contestant was increased by four hundred and seventeen votes which had been thrown out by the judges of election. The reason for this increase, while not material upon this proceeding, .will appear from a history of the case, Avhich may be summarized as follows: Prior to March 22d, 1901, official ballots were, by force of section 85 of the revised Election law, required in the charter and local elections in all the cities of the state, but not in' “any election in any toAvnship, town, borough or other municipality of the state.” On March 22d, 1901, a supplement to — 57 — this act was approved (Pamph. L., p. 334) by which it was enacted that “all the provisions of the act to which this act is a supplement relating to the nominations of candidates and the use of official ballots and envelopes shall apply to the charter, local, municipal and special elections in all of the towns of this state in the same manner and to the like effect as in and by said act the same are made applicable to the charter, local or special elections in the cities of this state, anything in said act to the contrary notwithstanding.” The municipal clerk of. Long Branch, deeming that this supplement applied to that municipality, caused official ballots to be prepared for those candidates whose nominations had been filed with him, placed his official endorsement and 'signature upon such ballots and delivered them to the election officers of the several election districts, who, acting under the advice of the city solicitor of Long Branch, distributed these ballots alone to the electors and counted only such ballots as ■bore the official endorsement of the said clerk. In fine, the election was conducted throughout as if the supplement of 1901 applied to Long Branch. The candidates named upon the People’s ticket had filed with the clerk their petition of nomination, and ballots bearing their names and the official endorsement were cast and counted to the number of one thousand and two for the incumbent. • The candidates named on the Independent ticket had not filed any petition of nomination with- the clerk, and hence their ballots did not have the official endorsement. Such ballots to the number of four hundred and seventeen were rejected by the board in canvassing the votes, although votes to the number of one hundred and ninety-two were returned as cast for the contestant. The incumbent received a certificate of his election, whereupon the contestant petitioned the Circuit Court under the statute above cited. The claim of the contestant before the Circuit Court was that all of the ballots-cast for the incumbent should be thrown out, upon the ground that the official endorsement was a mark or device not permitted by the act regulating elections, whereby they might be distinguished from other ballots cast — 58 — at such election, referring to section 58. Pamph. L. 1898, p. 267, If this contention of the contestant is well founded it is immaterial whether the contestant is credited with six hundred and nine votes or with four hundred and seventeen or with one hundred and ninety-two votes only. The crucial question was and is whether the ballots that bore the official endorsement were for that reason void; and this in turn was deemed to depend upon whether the supplement of 1901 applied to Long Branch. So that one of the questions considered in the Circuit Court was whether Long Branch was a town within the meaning of that act. The Circuit Court thereupon construed the statute of 1901 and held that “Long Branch was not a town within the act, and hence that official ballots were not required at the local elections therein, under which view all of the ballots cast for the contestant should have been counted.” • Consequently, four hundred and seventeen ballots that had been rejected by the canvassers were counted for the contestant by the Circuit Court, giving' him a total of six hundred and nine votes. The soundness of this decision concerning the act of 1901 is neither affirmed nor denied, such determination not being thought necessary in view of the broader question presented by this appeal. That question is whether at an election conducted under the Election law of 1898 official ballots prepared and endorsed by a municipal clerk in supposed compliance with the legislative will as expressed in supplemental legislation and distributed and counted by the proper election officers, should, upon a recount, be thrown out if the Circuit Court reached the conclusion that the clerk had misconceived the meaning of such supplemental law. The mere statement of the proposition in this form suggests that the controlling question may be not whether the construction placed by the clerk upon the language of the new statute was the correct one, but whether the cleric was not placed in a position where it became his duty to construe such new law in the due administration of his office as part of the election machinery provided by that act, and whether in such juncture the official conduct of the clerk rendered void the ballots furnished by him to the — 59 — electors.' That some meaning must be put upon a legislative enactment by the executive and ministerial officers affected by it is obvious. That such constructions, when honestly made and acted upon receive a certain recognition irrespective of their correctness is a fact of common legal knowledge, so much so that when a statute of uncertain meaning has been interpreted in a certain way for a sufficient length of time by the ministerial or executive officers affected by it such construction takes rtak with judicial exposition. Pioneer v. Bagnoll, 20 Vroom 226, is a case in point. Numerous other illustrations of this rule may be found in Suth. Stab. Const. 392, § 308. Premising, therefore, that the duty of construing legislative language may, at times, by warrant of law, fall to the lot of ministerial officers in the first instance, we turn to the statute law regulative of elections in order to see whether such-was, in the present case, the duty of the clerk of Long Branch, and if so, to determine what effect a mistake upon his part should have upon the electors who voted the ballots issued by him under such misconception, if such it was. Section 48'of the Election law provides that “all ballots cast at any election shall (except as herein otherwise provided) be printed and distributed at public expense, and no ballots shall be cast or counted at any such election except such as are by this act provided.” Section 49 provides that “in cases of election within and for a single municipality of any county where the certificate of nomination is, pursuant to this act, to be filed with the clerk of such municipality, such municipal clerk shall provide such ballots.” Section 50 provides that “on the back of each of the said ballots to be printed by the * * * municipal clerks shall be printed the words, “Official ballot,” and then shall follow * * * a fac-simile of the signature of * * * the municipal clerk by whom such ballot was prepared.” By section 85, as has been already pointed out, the ^provision 'for the preparation and use of official ballots applied to all cities of the sfate, but not to any other municipality, and by the supplement of March 22d, 1901, all of the said provisions relating to the — 60 — nomination of candidates and the use of official ballots were extended to the charter, local and municipal elections held in all 'of the towns of this state. It is obvious that if the supplement of 1901 applied to Long Branch it was the duty of the clerk of that municipality to prepare the official ballots for use at the election in question, and it seems to be equally obvious that the duty of deciding whether such supplement did require the use of such ballots was in the first instance east upon such clerk; always assuming'that the language of said supplement fairly admitted of such’ construction. That the question of construction thus presented was a fairly debatable one must, I think, be at once apparent to anyone at all conversant with the state of judicial decision upon the subject of legislation affecting “towns.” In the historic case of Van Riper v, Parsons, 11 Vroom 1, the word “town” was given a significance broad enough to include every municipality in the state, including cities. In Pell v. Newark, 11 Vroom 550, Chief Justice Beasley, speaking for the Court of Errors and Appeals, said that the word “towns,” standing in its generic sense, embraced townships as well as cities, “and all other places corporate established for local government of the same grade as these and also those of an inferior order, if any such there be.” In Banta v. Richards, 13 Vroom 497, Mr. Justice Dixon, speaking for this court, said: “The word used in the law throughout is Town.’ This is a word of varying significance. * * :|! But so uncertain is this term Towns’ that a construction which rested upon the word alone would be quite unsatisfactory;” and the opinion held in conclusion that townships were not included among “towns” in the act under consideration. In Broome v. Telephone Co., 20 Vroom 624, the same learned jurist said: “The import of the word Town’ in our legislation is so variable that its signification in any particular enactment must largely depend upon the occasion and purpose of the law,” holding in conclusion that in the statute under consideration “the word Town’ should receive an inter — 61 — pretation broad enough to include all such places whether they were formally styled towns, townships, boroughs or villages.” In Stout v. Glen Ridge, 30 Vroom 201, Mr. Justice Magie said: “It is undeniable that the word Town'" has been used in our legislation in different sensesconcluding that in the act under review it included every species of municipal corporation below that of city and above that of township. In Brown v. Town of Union, 33 Vroom 142, Mr. Justice Van Syckel held that “the word Towns’ embraced the whole range of bodies corporate less than counties established for local government.” And in Long Branch v. Dobbins, 32 Vroom 659, in the opinion of the Court of Errors, delivered by Judge Nixon, it was said, arguendo: “If Long Branch is not a village it certainly is a town.” Enough has been said, I think, to establish the proposition that the question whether Long Branch was included under the designation of “towns” in the supplement of 1901 was a fairly debatable question imperatively demanding a construction in order to ascertain its practical bearing upon the duties prescribed for the clerk of that municipality. Indeed, speaking for myself, I may say that notwithstanding the act for the formation, establishment and government of towns (Pamph. L. 1895, p. 218), the construction given to the act of 1901 by the clerk and solicitor of Long Branch has much show of reason and some respectable dicta in its favor. However that may be, the point reachéd is that the law was of debatable import and that it had to be construed by the clerk one way or the other in determining whether he should or should not prepare and issue official ballots for the use of the electors of Long Branch at the election in question. This brings us to the second point of inquiry, viz., what should be the effect of such official action upon these electors, assuming that the clerk erred in his construction of the law ? The legislation pertinent to this branch of the case is contained in the fifty-eighth section of the Election law, and is in these words: — 62 — “If any ballot voted at any election shall have thereon, either on its face or its back, any mark, sign, designation or device whatsoever, other than is permitted by this act, whereby such ballot can or may be identified or distinguished from other ballots cast at such election, such, ballot shall be absolutely void and shall not be canvassed or counted for any candidate named thereon.” It is to be observed that the mark or device proscribed by this language is any that is not permitted by the act in question, to wit, the Election law. This must, I think, be taken to refer not only to such marks as were expressly allowed by the lawmaker, but also such as resulted from the application of established legal rules to the scheme of official duty imposed by the act itself. It extended, therefore, so far as such legal principles carried it, to the marking of ballots as official where such marking resulted from the construction of a pertinent legislative enactment made by the election officer to whom the act itself, in the first instance, committed the duty of making such construction. If this be so, it follows that the official ballots furnished to the electors of Long Branch by the municipal clerk, under his construction of the act of 1901, were not marked ballots within the meaning of the eighty-fifth section of the Election law, but that they were rightly, treated at such election as legal votes, irrespective of the correctness of the clerk’s construction of the statute in question. This, at least, is the conclusion to which I have come after giving to the subject that consideration which the non-appealable character of the present decision demands. Pamph. L. 1894, p. 491; O’Brien v. Benny, 29 Vroom 189. To hold otherwise would be in effect to say that the legislature had permitted a certain officer to decide that ballots' bearing an official endorsement could alone be used at a given election, and yet had intended that such official endorsement should of,, itself be a mark or device not permitted by the act that granted such permission. The legislature will not lightly be presumed to have intended a result so palpably unreasonable as to expose its entire election system to the alternative of absolute unconstitutionality. This seems to me to be the — 63 — proper outcome and solution of the important practical question raised by this appeal. At the same time this course leaves unimpaired the original construction placed upon- the section of the law last cited by Mr. Justice Depue in the eases of Ulrich v. Ereiénsehner and Kearns v. Edwards, given shortly after the adoption of the reformed Election law. These cases were decided in the Essex Circuit Court by Mr. Justice Depue in 1891 and 1894, respectively, and it is a matter of regret that they are not directly accessible in our state reports. They are to be found, however, in the “New Jersey Law Journal” for those years. Ulrich v. Freiensehner, 15 N. J. L. J. 74; Kearns v. Edwards, 17 Id. 51. The latter case is also reported in 28 Atl. Rep. 723. The point decided in each case was that the legislation in question superseded wholly the common law rule of ascertaining if possible what the intention of the voter was, and substituted for it a legislative fiat that was to be enforced regardless of the supposed intention of the voter and without extraneous evidence. These rulings have hitherto been approved and followed by • this court, and there is no intention, in the present case, to depart from them or to detract in the least degree from their authority. The result is that upon this appeal the judgment rendered in the Circuit Court is affirmed. The case of Nordell v. Vannote, which was argued at the same time, is ruled by the above decision upon the merits, hence it is not necessary to decide whether the contestant could make his contest against an incumbent who was one of three commissioners and had not received the lowest number of votes east for the office.